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How Much is a Song Worth?

I’ve always considered myself lucky to be on this side of ‘the pond’ when it comes to the music industry’s approach to file sharing. In Europe the music industry’s bodies have diligently pursued a carrot and stick approach, with a strong focus on education. No industry wants to take legal action against its customers unless it absolutely has to, and in Europe one gets the sense of necessary-but-unwanted-last-resort. Which contrasts sharply with the RIAA in the US. Regular readers of this blog will know that I’m not the world’s biggest fan of the RIAA, but I keep an open mind hoping that they’ll do something to help me change my opinion. In practice the usually just make it worse by the likes of suing 12 year old girls and dead people. And yes I am making a big deal of ‘spin’ and tone but in any PR based campaign those factors are crucial. They are the basis of such campaigns.

Anyway, the latest installment is that the RIAA has won the first case in which a defendant’s case was heard in front of a jury. For sharing 24 tracks on Kazaa, a 30 year old single mother has been landed with a fine of $222,000. That works out at nearly 10 grand a song. Some reports suggest that the Jury may have considered a fine up to $3.6 million (i.e. the $150,000 per infringed work).

I understand why the RIAA pushed for such a large fine: they wanted to establish a deterrent for other defendants who might wish to challenge the fines. But the fine is out of proportion with the act, and yet the RIAA adopted their typically bolshy stance and bragged

“This is what can happen if you don’t settle”

Regardless what technical evidence may or may not have been presented, it is impossible to prove that the defendant’s tracks generated that amount of loss to the industry. Here’s why:
• Firstly, the software companies that track the networks (and whose specialist advice and testimony is crucial to these actions) typically do not track everything that happens on the networks. They use sample based methodologies by tracking portions of them.
• Secondly you can’t prove that the individuals who downloaded a track didn’t then go an buy the album
• Thirdly, the way that file sharing networks work is that tracks propagate around the networks so that multiple copies exist. This means that when you search for a track your request gets sent to the closest track on the network. (Or for the more sophisticated network your request gets split into multiple requests and pulls the information from multiple sources). Therefore, unless the defendant had uploaded rare music not available elsewhere (which she didn’t – it was the likes of Aerosmith and Green Day) or she was the first to upload the tracks (highly unlikely and not claimed by the RIAA) it would be impossible to prove what impact her uploaded tracks had versus the others on the network unless the tracks had been tagged or watermarked.

All of which is probably why the ruling was made on the basis that the tracks were available for distribution, not even upon their actual distribution. But if it’s impossible to prove a small clear cut case like this then what does that say about the RIAA’s $150,000 theoretical ‘evidence’?